Common use of Accountant’s Determination Clause in Contracts

Accountant’s Determination. The Accountant shall be instructed to render its written determination with respect to the Disputed Items (and only the Disputed Items) as soon as reasonably possible (it being the intention of the Parties that such determination shall be rendered not later than 45 days following the formal engagement of the Accountant). The Accountant shall act as an expert and not as an arbitrator to determine solely the Disputed Items based solely on the submissions and responses of Buyer, on the one hand, and Seller, on the other hand, without independent investigation and in accordance with this Agreement, including the Accounting Principles (as applicable); provided that, for the avoidance of doubt, the Accountant’s determination with respect to any Disputed Items is not intended to permit the introduction of different accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purposes of determining the Final Cash Consideration other than as required by this Agreement (including the Accounting Principles). In resolving any disputed amount in connection with its determination of the Final Cash Consideration, or any component thereof, the Accountant may not assign a value to any Disputed Item greater than the greatest value for such Disputed Item claimed by either Party or less than the smallest value for such item claimed by either Party. The Accountant shall not conduct an independent investigation but shall instead base its determination on the written submissions of the Parties delivered pursuant to and in accordance with Section 1.4(b)(vi) with respect to the Disputed Items. The determination of the Accountant in accordance with this Section 1.4(b)(vii) shall be binding and final for purposes of this Agreement, absent fraud or manifest error. The Post-Closing Statement resulting from the determinations with respect to the Disputed Items made by the Accountant in accordance with this Section 1.4(b)(vii) shall be deemed the Final Closing Statement.

Accountant’s Determination. The Accountant shall be instructed to render its written determination with respect to the Disputed Items (and only the Disputed Items) as soon as reasonably possible (it being the intention of the Parties that such determination which Purchaser and Seller Parent agree shall not be rendered not later than 45 30 days following the formal engagement of the Accountant). The Accountant shall act as an expert and not as an arbitrator to determine solely the Disputed Items based solely on the submissions and responses provided by each of Buyer, on the one hand, Purchaser and Seller, on the other handSeller Parent pursuant to Section 2.11(b)(v), without independent investigation and in accordance with this Agreement and the Accounting Methodology. In resolving any disputed amount in connection with its determination of the Final Purchase Price, (A) each of Seller Parent and Purchaser and their respective Representatives shall be afforded the opportunity to present to the Accountant any material such Party deems relevant to the dispute (provided that such material and its applications would be in accordance with this Section 2.11, and shall have a continuing opportunity to discuss the matter and its position with the Accountant; provided, further, that no such presentation of materials or communication shall be on an ex parte basis unless agreed to in writing by the other Party) and (B) the Accountant may not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party in the Post-Closing Statement or the Notice of Objection. Furthermore, in its review and calculation of the Disputed Items, such Accountant shall (v) be limited to a review of whether the Disputed Items were calculated strictly in accordance with the Accounting Methodology and this Section 2.11 (and any related definitions), (w) consider only the Disputed Items in the Notice of Objection and shall therefore be bound as to all other matters and calculations as to which the Post-Closing Statement and the Notice of Objection are in accord, (x) be bound in all respects and for all purposes by the definitions hereof and the Accounting Methodology, and shall select, with respect to each Disputed Item, an amount within the range between Purchaser’s position as set forth in the Post-Closing Statement or Seller Parent’s position, as set forth in the Notice of Objection, (y) not consider in any respect or for any purpose any settlement discussions or settlement offer made by or on behalf of Purchaser and Seller Parent, unless otherwise agreed by Purchaser and Seller Parent, and no Party will disclose (or permit its Representatives to disclose) to the Accountant any such discussions or offer and (z) be limited to fixing mathematical errors and determining whether the Disputed Items were determined strictly in accordance with the Accounting Methodology, and the Accountant is not to make any other determination, including (1) whether GAAP was followed for any purposes under this Agreement, including (2) whether any of the Accounting Principles (as applicable); provided that, for the avoidance of doubtTarget Working Capital, the Accountant’s Estimated Net Cash, or the Estimated Working Capital is correct, (3) the accuracy of Section 3.6, or any other representation or warranty in this Agreement or (4) compliance by any Party with any of its covenants, agreements or obligations in this Agreement (other than compliance with this Section 2.11). The Parties agree that the determination of the Accountant with respect to any Disputed Items is not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purposes of determining the Final Cash Consideration other than as required by this Agreement (including Purchase Price, and the Accounting Principles). In resolving any disputed amount in connection with its determination of the Final Cash Consideration, or any component thereof, the Accountant may not assign a value to any Disputed Item greater than the greatest value for such Disputed Item claimed by either Party or less than the smallest value for such item claimed by either Party. The Accountant shall not conduct an independent investigation but shall instead base its determination on the written submissions of the Parties delivered pursuant to Section 2.11(b)(v) and in accordance with this Section 1.4(b)(vi2.11(b)(vi) with respect to the Disputed Items. The determination of the Accountant in accordance with pursuant to this Section 1.4(b)(vii2.11(b)(vi) shall be binding and final for purposes of this Agreement, absent fraud or manifest error. The Post-Closing Statement resulting from the determinations with respect to the Disputed Items made by the Accountant in accordance with pursuant to this Section 1.4(b)(vii2.11(b)(vi) shall be deemed the Final Closing Statement.

Accountant’s Determination. The Accountant shall be instructed to render to both Parent and the Stockholder Representative in writing its written determination with respect to (A) the Disputed Items and (and only B) the Disputed Itemsallocation of the Accountant’s fees pursuant to Section 2.6(c)(v) as soon as reasonably possible practicable (it being the intention of which the Parties that such determination agree shall not be rendered not later than 45 thirty (30) days following the formal engagement date the Accountant receives each Party’s comments on the other’s initial submission or, if no comments are received, the later date of the Accountantits receipt of each Party’s initial submission). The Accountant shall act as an expert and not as an arbitrator to determine solely the Disputed Items based solely on the submissions and responses of BuyerParent, on the one hand, and Sellerthe Stockholder Representative, on the other hand, without independent investigation and in accordance with this Agreement, including the Accounting Principles (as applicable); provided that, for the avoidance of doubt, the Accountant’s determination with respect to any Disputed Items is not intended to permit the introduction of different accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purposes of determining the Final Cash Consideration other than as required by this Agreement (including the Accounting Principles). In resolving any disputed amount in connection with its determination of the Final Merger Cash Consideration, or any component thereof, the Accountant may not assign a value to any Disputed Item greater than the greatest value for such Disputed Item claimed by either Party or less than the smallest value for such item claimed by either Party. The Parties agree that the determination of the Accountant with respect to any Disputed Items is not intended to permit the introduction of different accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purposes of determining the Final Merger Cash Consideration, and the Accountant shall not conduct an independent investigation but shall instead base its determination on the written submissions of the Parties delivered pursuant to and in accordance with Section 1.4(b)(vi2.6(c)(iii) with respect to the Disputed Items. The determination of the Accountant in accordance with this Section 1.4(b)(vii2.6(c)(iv) shall be binding and final for purposes of this Agreement, absent fraud or manifest error. The Post-Closing Statement resulting from the determinations with respect to the Disputed Items made by the Accountant in accordance with this Section 1.4(b)(vii2.6(c)(iv) shall be deemed the Final Closing Statement.. (v)

Accountant’s Determination. The Accountant shall be instructed to render its written determination with respect to the Disputed Items (and only the Disputed Items) as soon as reasonably possible (it being the intention of the Parties that such determination shall be rendered not later than use commercially reasonable efforts to cause the Accountant to complete its work within 45 days following the formal engagement of the Accountant). The Accountant shall act as an expert and not as an arbitrator to determine solely the Disputed Items based solely on the submissions and responses of BuyerBuyers, on the one hand, and SellerSellers, on the other hand, delivered pursuant to and in accordance with Section 1.4(b)(v) with respect to the Disputed Items, without independent investigation and in accordance with this Agreement, including the Accounting Principles (as applicable); provided that, for the avoidance of doubt, the Accountant’s determination with respect to any Disputed Items is not intended to permit the introduction of different accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purposes of determining the Final Cash Consideration other than as required by this Agreement (including the Accounting Principles). In resolving any disputed amount in connection with its determination of the Final Cash Consideration, or any component thereof, the Accountant may not assign a value to any Disputed Item greater than the greatest value for such Disputed Item claimed by either Party or less than the smallest value for such item claimed by either Party. The Accountant shall not conduct an independent investigation but shall instead base its Parties agree that the determination on the written submissions of the Parties delivered pursuant to and in accordance with Section 1.4(b)(vi) Accountant with respect to any Disputed Items is not intended to permit the Disputed Itemsintroduction of accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies that conflict with the Accounting Principles or the definitions set forth herein for the purposes of determining the Final Cash Consideration. The determination of the Accountant in accordance with this Section 1.4(b)(vii1.4(b)(vi) shall be in writing setting forth its calculation of the Disputed Items, along with its analysis in reasonable detail and the basis and quantification for such final resolution and shall be binding and final for purposes of this Agreement, and enforceable in any court of competent jurisdiction, absent fraud or manifest error. The Post-Closing Statement resulting from the determinations with respect to the Disputed Items made by the Accountant in accordance with this Section 1.4(b)(vii1.4(b)(vi) shall be deemed the Final Closing Statement.